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| Oracle v. Google - Patent Marking Facts - A Timetable |
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Tuesday, January 03 2012 @ 09:00 AM EST
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When we last visited the parties on the issue of evidence of patent marking, the parties had reached agreement with respect to process but not timetable. (See, More Arguments with Respect to the Cockburn Damages Report) The parties have now reached agreement on the timetable, and it appears a further concession by Oracle that trial is not imminent.
Per their agreement (661 [PDF; Text]), by January 6 Oracle will identify and document (either with source code or other printed documentation or by identification of witnesses) those Oracle products, including licensed products, that embody the asserted claims. By January 20 Google will identify any other Oracle or licensed products that practice the asserted claims and/or challenge the products listed by Oracle as to their actual practice of the claims, along with support for Google's position. Finally, following Google's disclosure the parties will meet to try to agree to a list of stipulated practicing products and/or identify products on which they do not agree and why, and that information will be submitted to the court by January 27.
So progress on the patent marking front, but clearly no January trial date.
***********
Docket
661 - Filed and Effective: 12/30/2011
Statement
Statement re 641 Order Joint Statement Regarding Supplemental Order Regarding Patenting Marking by Google Inc., Oracle America, Inc.. (Peters, Marc)
************
Document
661
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ORACLE AMERICA, INC.
Plaintiff,
v.
GOOGLE INC.
Defendant.
Case No. CV 10-03561 WHA
JOINT STATEMENT REGARDING
SUPPLEMENTAL ORDER
REGARDING PATENTING
MARKING
Dept.: Courtroom 8, 19th Floor
Judge: Honorable William H. Alsup
Pursuant to the Court’s December 6, 2011 Supplemental Order Regarding Patenting
Marking (Dkt. No. 641), Google and Oracle met-and-conferred in person regarding a procedure
and timetable regarding the marking issues, as directed by the Court. In so doing, the parties
agreed to a procedure for identifying products that practice the asserted patents and for
identifying any disputes, but could not agree to a timetable. (12/20/11 Joint Statement Regarding
Supplemental Order Regarding Patenting Marking (Dkt. No. 643).) Following the December 21,
2011 Pre-Trial Conference, at which the Court advised the parties to further meet and confer
regarding a timetable, the parties have reached an agreement, as follows:
1. On January 6, 2012, Oracle will provide an identification, for each of the 26
asserted claims, of each Oracle product, Oracle-licensed product, Sun product, or Sun-licensed
product (“Oracle Products”) that practice or have practiced the claim. Oracle will also identify
the fact witnesses who possess information supporting Oracle’s contentions that the Oracle
Products practice or have practiced the asserted claims, as well as provide a summary of
testimony Oracle intends to elicit at trial from those witnesses regarding those Oracle Products’
practice of the claims. Oracle will also provide source code citations and/or other documentation
supporting Oracle’s contentions that the Oracle Products practice the asserted claims.
2. On January 20, 2012, Google will respond to Oracle and identify any other Oracle
Products that Google contends practiced any of the 26 asserted claims during the alleged damages
period and identify any products in Oracle’s identification that Google contends do not practice
the identified claims. Google’s response will specify which Oracle Products it contends do (or do
not) practice the asserted claims, and why.
3. Following Google’s response, the parties will meet-and-confer regarding their
disclosures with the aim of preparing a stipulation of which Oracle Products practice the asserted
claims. On January 27, 2012, the parties will jointly submit to the Court a list of the Oracle
Products that they stipulate practice the asserted claims, which shall have the effect of
establishing that fact for all purposes at trial, and a list of those Oracle Products for which there is
a genuine dispute between the parties as to whether they practiced the asserted claims, along with
brief explanations of the basis for each party’s contention.
1
Dated: December 30, 2011
MORRISON & FOERSTER LLP
By: /s/ Marc David Peters
MORRISON & FOERSTER LLP
MICHAEL A. JACOBS (Bar No. 111664)
[email]
MARC DAVID PETERS (Bar No. 211725)
[email]
DANIEL P. MUINO (Bar No. 209624)
[email address telephone fax]
755 Page Mill Road
BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
[email address telephone fax]
STEVEN C. HOLTZMAN (Bar No. 144177)
[email address telephone fax]
ORACLE CORPORATION
DORIAN DALEY (Bar No. 129049)
[email]
DEBORAH K. MILLER (Bar No. 95527)
[email]
MATTHEW M. SARBORARIA (Bar No.
211600)
[email address telephone fax]
Attorneys for Plaintiff
ORACLE AMERICA, INC.
2
Dated: December 30, 2011
KEKER & VAN NEST LLP
By: /s/ Matthias Kamber
SCOTT T. WEINGAERTNER (Pro Hac Vice)
[email]
ROBERT F. PERRY
[email]
BRUCE W. BABER (Pro Hac Vice)
[email address telephone fax]
DONALD F. ZIMMER, JR. (SBN 112279)
[email]
CHERYL A. SABNIS (SBN 224323)
[email]
KING & SPALDING LLP
[address telephone fax]
GREENBERG TRAURIG, LLP
IAN C. BALLON (SBN 141819)
[email]
HEATHER MEEKER (SBN 172148)
[email address telephone fax]
KEKER & VAN NEST LLP
ROBERT A. VAN NEST (SBN 84065)
[email]
CHRISTA M. ANDERSON (SBN184325)
[email]
DANIEL PURCELL (SBN 191424)
[email address telephone fax]
Attorneys for Defendant
GOOGLE INC.
3
ATTESTATION
I, Marc David Peters, am the ECF User whose ID and password are being used to file this
JOINT STATEMENT REGARDING SUPPLEMENTAL ORDER REGARDING PATENTING
MARKING. In compliance with General Order 45, X.B., I hereby attest that Matthias Kamber
has concurred in this filing.
Date: December 30, 2011
/s/ Marc David Peters
4
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| Authored by: Kilz on Tuesday, January 03 2012 @ 09:09 AM EST |
| Please mention the mistake in the title of the post. [ Reply to This | # ]
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| Authored by: Kilz on Tuesday, January 03 2012 @ 09:09 AM EST |
| For all posts that are not on topic. [ Reply to This | # ]
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| Authored by: Kilz on Tuesday, January 03 2012 @ 09:10 AM EST |
Please mention the news story's name in the title of your
post.[ Reply to This | # ]
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| Authored by: Kilz on Tuesday, January 03 2012 @ 09:15 AM EST |
| . [ Reply to This | # ]
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| Authored by: jpvlsmv on Tuesday, January 03 2012 @ 10:59 AM EST |
By this Friday, Oracle will list the products it thinks practice these patents
(with specificity- where in the code, and who will testify).
Then Google has 2 weeks to list other products it thinks practice the patents,
and to challenge items on the list Oracle produced.
Then they'll talk about it and might come up with a stipulated agreement by the
end of the month.
--Joe[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, January 03 2012 @ 12:36 PM EST |
Oracle will also provide source code citations
and/or other
documentation supporting Oracle’s
contentions...
Given that most
of Oracle's products are closed source, how
is Google reasonably expected to
evaluate the source code
citations? Will Google need (and will Oracle provide)
the
complete source code for all apps at issue? Is Google
expected to take
Oracle's word for this?
Related, how will Google be expected to provide an
alternative view if they challenge items do/do not practice
the patents?
Clearly they can't cite source code back at
Oracle. I note that Oracle claimed
in a previous filing
that they demanded Google respond "with specificity," but
it
looks like the standard of specificity being set is
impossible for Google
to meet.[ Reply to This | # ]
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| Authored by: hAckz0r on Tuesday, January 03 2012 @ 11:29 PM EST |
| If a Java implementation necessarily requires the patents in question, then
Sun's origional OpenJDK should certainly embody those patents. As such it should
be "marked" or it is otherwise running afoul of Oracles current duty to mark.
I downloaded the Open Source distribution from
http://download.java.net/openjdk/jdk7/ and took a peek via good old grep and
what happened to pup up? how about this little tidbit from
./openjdk/langtools/LICENSE
Finally, any free program is
threatened constantly by software patents. We wish to avoid the danger that
redistributors of a free program will individually obtain patent licenses, in
effect making the program proprietary. To prevent this, we have made it clear
that any patent must be licensed for everyone's free use or not licensed at
all.
My emphasis added
and from
./openjdk/langtools/THIRD_PARTY_README
Finally, software
patents pose a constant threat to the existence of
any free program. We wish to
make sure that a company cannot
effectively restrict the users of a free program
by obtaining a
restrictive license from a patent holder. Therefore, we insist
that
any patent license obtained for a version of the library must be
consistent
with the full freedom of use specified in this license.
then
11. If, as a consequence of a court judgment or allegation
of patent
infringement or for any other reason (not limited to patent
issues),
conditions are imposed on you (whether by court order, agreement
or
otherwise) that contradict the conditions of this License, they do not
excuse
you from the conditions of this License. If you cannot
distribute so as to
satisfy simultaneously your obligations under this
License and any other
pertinent obligations, then as a consequence you
may not distribute the Library
at all. For example, if a patent
license would not permit royalty-free
redistribution of the Library by
all those who receive copies directly or
indirectly through you, then
the only way you could satisfy both it and this
License would be to
refrain entirely from distribution of the
Library.
So, if Java(tm) has the patents in question
implimented then it is clear that Sun had intentions that everybody is to be
unencumbered, and if the patents are not in the OpenJDK then who is to say
that Google must absolutely be implementing that patent if a non-infringing
distribution is definitely possible?
Besides that, I found no patent
numbers in the entire source tree, so it is unmarked by Sun/Oracle as far as I
can see (IANAL). Java source comments from Taligent, IBM, AT&T, and
Mitsubishi mention "protected by multiple patents", but no numbers, and they are
not Sun/Oracle in any case. The only C language source deflate.c (aka part of
the JVM proper) that mentions the word "patented" is talking about a prior
version which subsequently had that patented algorithm removed.
---
DRM - As a "solution", it solves the wrong problem; As a
"technology" its only 'logically' infeasible. [ Reply to This | # ]
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